BILL NUMBER: AB 451	CHAPTERED  08/30/99

	CHAPTER   254
	FILED WITH SECRETARY OF STATE   AUGUST 30, 1999
	APPROVED BY GOVERNOR   AUGUST 30, 1999
	PASSED THE ASSEMBLY   AUGUST 16, 1999
	PASSED THE SENATE   JULY 15, 1999
	AMENDED IN SENATE   JUNE 28, 1999
	AMENDED IN ASSEMBLY   APRIL 15, 1999
	AMENDED IN ASSEMBLY   MARCH 24, 1999

INTRODUCED BY   Assembly Member Maddox
   (Coauthors:  Senators Alpert and Polanco)

                        FEBRUARY 16, 1999

   An act to amend Sections 480, 502, and 502.01 of the Penal Code,
relating to crimes.


	LEGISLATIVE COUNSEL'S DIGEST


   AB 451, Maddox.  Counterfeiting:  computer systems.
   (1) Existing law provides that every person who makes, or
knowingly has in his or her possession, any apparatus made use of in
counterfeiting current coins or bills is punishable by imprisonment
in the state prison for 2, 3, or 4 years; and that apparatus must be
destroyed.
   This bill, to be known and cited as the "Officer Don Burt Act of
1999," would provide that if the counterfeiting apparatus used to
violate the above provision is a computer, computer system, or
computer network, the apparatus or machine shall be subject to
forfeiture, as specified, except as provided.  The bill would make
conforming changes to the forfeiture provision.  By revising the
penalties for an existing crime, this bill would impose a
state-mandated local program.
   (2) Existing law provides that any computer, computer system,
computer network, or any software or data, owned by the defendant,
that is used during the commission of specified offenses shall be
subject to forfeiture, as specified.
   This bill would add to the list of offenses for which a computer,
computer system, computer network, or any software or data used in
the commission of the offense would be subject to forfeiture.  This
bill would clarify a provision setting forth an exemption for any
person who accesses his or her employer's computer system, computer
network, computer program, or data when acting within the scope of
his or her lawful employment and would provide an exemption, in
addition, for any person who accesses his or her employer's computer
system, computer network, computer program, or data when acting
outside of his or her lawful employment if there is no injury or if
the value of supplies or computer services used does not exceed $100.
  By increasing the penalties for existing crimes, this bill would
impose a state-mandated local program.
   This bill would also provide that forfeiture would not apply to
property used solely in the commission of an infraction.  The bill
would provide that forfeiture would not apply to the property of a
minor's parent or guardian where the property was located in the
family's primary residence during the commission of the crime, and
the parent or guardian has made full restitution, as specified.  The
bill would authorize a court to exercise its discretion to deny
forfeiture where the court finds the defendant or juvenile, as
specified, is not likely to use the property otherwise subject to
forfeiture for future illegal acts.
  (3) The California Constitution requires the state to reimburse
local agencies and school districts for certain costs mandated by the
state.  Statutory provisions establish procedures for making that
reimbursement.
   This bill would provide that no reimbursement is required by this
act for a specified reason.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:


  SECTION 1.  This act shall be known and may be cited as the
"Officer Don Burt Act of 1999."
  SEC. 2.  Section 480 of the Penal Code is amended to read:
   480.  (a) Every person who makes, or knowingly has in his or her
possession any die, plate, or any apparatus, paper, metal, machine,
or other thing whatever, made use of in counterfeiting coin current
in this state, or in counterfeiting gold dust, gold or silver bars,
bullion, lumps, pieces, or nuggets, or in counterfeiting bank notes
or bills, is punishable by imprisonment in the state prison for two,
three, or four years; and all dies, plates, apparatus, papers,
metals, or machines intended for the purpose aforesaid, must be
destroyed.
   (b) (1) If the counterfeiting apparatus or machine used to violate
this section is a computer, computer system, or computer network,
the apparatus or machine shall be disposed of pursuant to Section
502.01.
   (2) For the purposes of this section, "computer system" and
"computer network" have the same meaning as that specified in Section
502.  The terms "computer, computer system, or computer network"
include any software or data residing on the computer, computer
system, or computer network used in a violation of this section.
  SEC. 3.  Section 502 of the Penal Code is amended to read:
   502.  (a) It is the intent of the Legislature in enacting this
section to expand the degree of protection afforded to individuals,
businesses, and governmental agencies from tampering, interference,
damage, and unauthorized access to lawfully created computer data and
computer systems.  The Legislature finds and declares that the
proliferation of computer technology has resulted in a concomitant
proliferation of computer crime and other forms of unauthorized
access to computers, computer systems, and computer data.
   The Legislature further finds and declares that protection of the
integrity of all types and forms of lawfully created computers,
computer systems, and computer data is vital to the protection of the
privacy of individuals as well as to the well-being of financial
institutions, business concerns, governmental agencies, and others
within this state that lawfully utilize those computers, computer
systems, and data.
   (b) For the purposes of this section, the following terms have the
following meanings:
   (1) "Access" means to gain entry to, instruct, or communicate with
the logical, arithmetical, or memory function resources of a
computer, computer system, or computer network.
   (2) "Computer network" means any system that provides
communications between one or more computer systems and input/output
devices including, but not limited to, display terminals and printers
connected by telecommunication facilities.
   (3) "Computer program or software" means a set of instructions or
statements, and related data, that when executed in actual or
modified form, cause a computer, computer system, or computer network
to perform specified functions.
   (4) "Computer services" includes, but is not limited to, computer
time, data processing, or storage functions, or other uses of a
computer, computer system, or computer network.
   (5) "Computer system" means a device or collection of devices,
including support devices and excluding calculators that are not
programmable and capable of being used in conjunction with external
files, one or more of which contain computer programs, electronic
instructions, input data, and output data, that performs functions
including, but not limited to, logic, arithmetic, data storage and
retrieval, communication, and control.
   (6) "Data" means a representation of information, knowledge,
facts, concepts, computer software, computer programs or
instructions.  Data may be in any form, in storage media, or as
stored in the memory of the computer or in transit or presented on a
display device.
   (7) "Supporting documentation" includes, but is not limited to,
all information, in any form, pertaining to the design, construction,
classification, implementation, use, or modification of a computer,
computer system, computer network, computer program, or computer
software, which information is not generally available to the public
and is necessary for the operation of a computer, computer system,
computer network, computer program, or computer software.
   (8) "Injury" means any alteration, deletion, damage, or
destruction of a computer system, computer network, computer program,
or data caused by the access.
   (9) "Victim expenditure" means any expenditure reasonably and
necessarily incurred by the owner or lessee to verify that a computer
system, computer network, computer program, or data was or was not
altered, deleted, damaged, or destroyed by the access.
   (10) "Computer contaminant" means any set of computer instructions
that are designed to modify, damage, destroy, record, or transmit
information within a computer, computer system, or computer network
without the intent or permission of the owner of the information.
They include, but are not limited to, a group of computer
instructions commonly called viruses or worms, that are
self-replicating or self-propagating and are designed to contaminate
other computer programs or computer data, consume computer resources,
modify, destroy, record, or transmit data, or in some other fashion
usurp the normal operation of the computer, computer system, or
computer network.
   (11) "Internet domain name" means a globally unique, hierarchical
reference to an Internet host or service, assigned through
centralized Internet naming authorities, comprising a series of
character strings separated by periods, with the rightmost character
string specifying the top of the hierarchy.
   (c) Except as provided in subdivision (h), any person who commits
any of the following acts is guilty of a public offense:
   (1) Knowingly accesses and without permission alters, damages,
deletes, destroys, or otherwise uses any data, computer, computer
system, or computer network in order to either (A) devise or execute
any scheme or artifice to defraud, deceive, or extort, or (B)
wrongfully control or obtain money, property, or data.
   (2) Knowingly accesses and without permission takes, copies, or
makes use of any data from a computer, computer system, or computer
network, or takes or copies any supporting documentation, whether
existing or residing internal or external to a computer, computer
system, or computer network.
   (3) Knowingly and without permission uses or causes to be used
computer services.
   (4) Knowingly accesses and without permission adds, alters,
damages, deletes, or destroys any data, computer software, or
computer programs which reside or exist internal or external to a
computer, computer system, or computer network.
   (5) Knowingly and without permission disrupts or causes the
disruption of computer services or denies or causes the denial of
computer services to an authorized user of a computer, computer
system, or computer network.
   (6) Knowingly and without permission provides or assists in
providing a means of accessing a computer, computer system, or
computer network in violation of this section.
   (7) Knowingly and without permission accesses or causes to be
accessed any computer, computer system, or computer network.
   (8) Knowingly introduces any computer contaminant into any
computer, computer system, or computer network.
   (9) Knowingly and without permission uses the Internet domain name
of another individual, corporation, or entity in connection with the
sending of one or more electronic mail messages, and thereby damages
or causes damage to a computer, computer system, or computer
network.
   (d) (1) Any person who violates any of the provisions of paragraph
(1), (2), (4), or (5) of subdivision (c) is punishable by a fine not
exceeding ten thousand dollars ($10,000), or by imprisonment in the
state prison for 16 months, or two or three years, or by both that
fine and imprisonment, or by a fine not exceeding five thousand
dollars ($5,000), or by imprisonment in a county jail not exceeding
one year, or by both that fine and imprisonment.
   (2) Any person who violates paragraph (3) of subdivision (c) is
punishable as follows:
   (A) For the first violation that does not result in injury, and
where the value of the computer services used does not exceed four
hundred dollars ($400), by a fine not exceeding five thousand dollars
($5,000), or by imprisonment in a county jail not exceeding one
year, or by both that fine and imprisonment.
   (B) For any violation that results in a victim expenditure in an
amount greater than five thousand dollars ($5,000) or in an injury,
or if the value of the computer services used exceeds four hundred
dollars ($400), or for any second or subsequent violation, by a fine
not exceeding ten thousand dollars ($10,000), or by imprisonment in
the state prison for 16 months, or two or three years, or by both
that fine and imprisonment, or by a fine not exceeding five thousand
dollars ($5,000), or by imprisonment in a county jail not exceeding
one year, or by both that fine and imprisonment.
   (3) Any person who violates paragraph (6), (7), or (8) of
subdivision (c) is punishable as follows:
   (A) For a first violation that does not result in injury, an
infraction punishable by a fine not exceeding two hundred fifty
dollars ($250).
   (B) For any violation that results in a victim expenditure in an
amount not greater than five thousand dollars ($5,000), or for a
second or subsequent violation, by a fine not exceeding five thousand
dollars ($5,000), or by imprisonment in a county jail not exceeding
one year, or by both that fine and imprisonment.
   (C) For any violation that results in a victim expenditure in an
amount greater than five thousand dollars ($5,000), by a fine not
exceeding ten thousand dollars ($10,000), or by imprisonment in the
state prison for 16 months, or two or three years, or by both that
fine and imprisonment, or by a fine not exceeding five thousand
dollars ($5,000), or by imprisonment in a county jail not exceeding
one year, or by both that fine and imprisonment.
   (4) Any person who violates paragraph (9) of subdivision (c) is
punishable as follows:
   (A) For a first violation that does not result in injury, an
infraction punishable by a fine not exceeding two hundred fifty
dollars ($250).
   (B) For any violation that results in injury, or for a second or
subsequent violation, by a fine not exceeding five thousand dollars
($5,000), or by imprisonment in a county jail not exceeding one year,
or by both that fine and imprisonment.
   (e) (1) In addition to any other civil remedy available, the owner
or lessee of the computer, computer system, computer network,
computer program, or data may bring a civil action against any person
convicted under this section for compensatory damages, including any
expenditure reasonably and necessarily incurred by the owner or
lessee to verify that a computer system, computer network, computer
program, or data was or was not altered, damaged, or deleted by the
access.  For the purposes of actions authorized by this subdivision,
the conduct of an unemancipated minor shall be imputed to the parent
or legal guardian having control or custody of the minor, pursuant to
the provisions of Section 1714.1 of the Civil Code.
   (2) In any action brought pursuant to this subdivision the court
may award reasonable attorney's fees to a prevailing party.
   (3) A community college, state university, or academic institution
accredited in this state is required to include computer-related
crimes as a specific violation of college or university student
conduct policies and regulations that may subject a student to
disciplinary sanctions up to and including dismissal from the
academic institution.  This paragraph shall not apply to the
University of California unless the Board of Regents adopts a
resolution to that effect.
   (f) This section shall not be construed to preclude the
applicability of any other provision of the criminal law of this
state which applies or may apply to any transaction, nor shall it
make illegal any employee labor relations activities that are within
the scope and protection of state or federal labor laws.
   (g) Any computer, computer system, computer network, or any
software or data, owned by the defendant, that is used during the
commission of any public offense described in subdivision (c) or any
computer, owned by the defendant, which is used as a repository for
the storage of software or data illegally obtained in violation of
subdivision (c) shall be subject to forfeiture, as specified in
Section 502.01.
   (h) (1) Subdivision (c) does not apply to punish any acts which
are committed by a person within the scope of his or her lawful
employment.  For purposes of this section, a person acts within the
scope of his or her employment when he or she performs acts which are
reasonably necessary to the performance of his or her work
assignment.
   (2) Paragraph (3) of subdivision (c) does not apply to penalize
any acts committed by a person acting outside of his or her lawful
employment, provided that the employee's activities do not cause an
injury, as defined in paragraph (8) of subdivision (b), to the
employer or another, or provided that the value of supplies or
computer services, as defined in paragraph (4) of subdivision (b),
which are used does not exceed an accumulated total of one hundred
dollars ($100).
   (i) No activity exempted from prosecution under paragraph (2) of
subdivision (h) which incidentally violates paragraph (2), (4), or
(7) of subdivision (c) shall be prosecuted under those paragraphs.
   (j) For purposes of bringing a civil or a criminal action under
this section, a person who causes, by any means, the access of a
computer, computer system, or computer network in one jurisdiction
from another jurisdiction is deemed to have personally accessed the
computer, computer system, or computer network in each jurisdiction.

   (k) In determining the terms and conditions applicable to a person
convicted of a violation of this section the court shall consider
the following:
   (1) The court shall consider prohibitions on access to and use of
computers.
   (2) Except as otherwise required by law, the court shall consider
alternate sentencing, including community service, if the defendant
shows remorse and recognition of the wrongdoing, and an inclination
not to repeat the offense.
  SEC. 4.  Section 502.01 of the Penal Code is amended to read:
   502.01.  (a) As used in this section:
   (1) "Property subject to forfeiture" means any property of the
defendant that is illegal telecommunications equipment as defined in
subdivision (g) of Section 502.8, or a computer, computer system, or
computer network, and any software or data residing thereon, if the
telecommunications device, computer, computer system, or computer
network was used in committing a violation of Section 470, 470a, 472,
476, 480, or subdivision (b) of Section 484e, subdivision (d) of
Section 484e, subdivision (a) of Section 484f, subdivision (b) of
Section 484i, subdivision (c) of Section 502, or Section 502.7,
502.8, 529, 529a, or 530.5, or was used as a repository for the
storage of software or data obtained in violation of those
provisions.  Forfeiture shall not be available for any property used
solely in the commission of an infraction.  If the defendant is a
minor, it also includes property of the parent or guardian of the
defendant.
   (2) "Sentencing court" means the court sentencing a person found
guilty of violating Section 470, 470a, 472, 476, 480, or subdivision
(b) of Section 484e, subdivision (d) of Section 484e, subdivision (a)
of Section 484f, subdivision (b) of Section 484i, subdivision (c) of
Section 502, or Section 502.7, 502.8, 529, 529a, or 530.5, or, in
the case of a minor, found to be a person described in Section 602 of
the Welfare and Institutions Code because of a violation of those
provisions, the juvenile court.
   (3) "Interest" means any property interest in the property subject
to forfeiture.
   (4) "Security interest" means an interest that is a lien,
mortgage, security interest, or interest under a conditional sales
contract.
   (5) "Value" has the following meanings:
   (A) When counterfeit items of computer software are manufactured
or possessed for sale, the "value" of those items shall be equivalent
to the retail price or fair market price of the true items that are
counterfeited.
   (B) When counterfeited but unassembled components of computer
software packages are recovered, including, but not limited to,
counterfeited computer diskettes, instruction manuals, or licensing
envelopes, the "value" of those components of computer software
packages shall be equivalent to the retail price or fair market price
of the number of completed computer software packages that could
have been made from those components.
   (b) The sentencing court shall, upon petition by the prosecuting
attorney, at any time following sentencing, or by agreement of all
parties, at the time of sentencing, conduct a hearing to determine
whether any property or property interest is subject to forfeiture
under this section.  At the forfeiture hearing, the prosecuting
attorney shall have the burden of establishing, by a preponderance of
the evidence, that the property or property interests are subject to
forfeiture.  The prosecuting attorney may retain seized property
that may be subject to forfeiture until the sentencing hearing.
   (c) Prior to the commencement of a forfeiture proceeding, the law
enforcement agency seizing the property subject to forfeiture shall
make an investigation as to any person other than the defendant who
may have an interest in it.  At least 30 days before the hearing to
determine whether the property should be forfeited, the prosecuting
agency shall send notice of the hearing to any person who may have an
interest in the property that arose before the seizure.
   A person claiming an interest in the property shall file a motion
for the redemption of that interest at least 10 days before the
hearing on forfeiture, and shall send a copy of the motion to the
prosecuting agency and to the probation department.
   If a motion to redeem an interest has been filed, the sentencing
court shall hold a hearing to identify all persons who possess valid
interests in the property.  No person shall hold a valid interest in
the property if, by a preponderance of the evidence, the prosecuting
agency shows that the person knew or should have known that the
property was being used in violation of Section 470, 470a, 472, 476,
480, or subdivision (b) of Section 484e, subdivision (d) of Section
484e, subdivision (a) of Section 484f, subdivision (b) of Section
484i, subdivision (c) of Section 502, or Section 502.7, 502.8, 529,
529a, or 530.5, and that the person did not take reasonable steps to
prevent that use, or if the interest is a security interest, the
person knew or should have known at the time that the security
interest was created that the property would be used for a violation.

   (d) If the sentencing court finds that a person holds a valid
interest in the property, the following provisions shall apply:
   (1) The court shall determine the value of the property.
   (2) The court shall determine the value of each valid interest in
the property.
   (3) If the value of the property is greater than the value of the
interest, the holder of the interest shall be entitled to ownership
of the property upon paying the court the difference between the
value of the property and the value of the valid interest.
   If the holder of the interest declines to pay the amount
determined under paragraph (2), the court may order the property sold
and designate the prosecutor or any other agency to sell the
property.  The designated agency shall be entitled to seize the
property and the holder of the interest shall forward any
documentation underlying the interest, including any ownership
certificates for that property, to the designated agency.  The
designated agency shall sell the property and pay the owner of the
interest the proceeds, up to the value of that interest.
   (4) If the value of the property is less than the value of the
interest, the designated agency shall sell the property and pay the
owner of the interest the proceeds, up to the value of that interest.

   (e) If the defendant was a minor at the time of the offense, this
subdivision shall apply to property subject to forfeiture that is the
property of the parent or guardian of the minor.
   (1) The prosecuting agency shall notify the parent or guardian of
the forfeiture hearing at least 30 days before the date set for the
hearing.
   (2) The computer or telecommunications device shall not be subject
to forfeiture if the parent or guardian files a signed statement
with the court at least 10 days before the date set for the hearing
that the minor shall not have access to any computer or
telecommunications device owned by the parent or guardian for two
years after the date on which the minor is sentenced.
   (3) If the minor is convicted of a violation of Section 470, 470a,
472, 476, 480, or subdivision (b) of Section 484e, subdivision (d)
of Section 484e, subdivision (a) of Section 484f, subdivision (b) of
Section 484i, subdivision (c) of Section 502, or Section 502.7,
502.8, 529, 529a, or 530.5, within two years after the date on which
the minor is sentenced, and the violation involves a computer or
telecommunications device owned by the parent or guardian, the
original property subject to forfeiture, and the property involved in
the new offense, shall be subject to forfeiture notwithstanding
paragraph (2).
   (4) Notwithstanding paragraph (1), (2), or (3), or any other
provision of this chapter, if a minor's parent or guardian makes full
restitution to the victim of a crime enumerated in this chapter in
an amount or manner determined by the court, the forfeiture
provisions of this chapter do not apply to the property of that
parent or guardian if the property was located in the family's
primary residence during the commission of the crime.
   (f) Notwithstanding any other provision of this chapter, the court
may exercise its discretion to deny forfeiture where the court finds
that the convicted defendant, or minor adjudicated to come within
the jurisdiction of the juvenile court, is not likely to use the
property otherwise subject to forfeiture for future illegal acts.
   (g) If the defendant is found to have the only valid interest in
the property subject to forfeiture, it shall be distributed as
follows:
   (1) First, to the victim, if the victim elects to take the
property as full or partial restitution for injury, victim
expenditures, or compensatory damages, as defined in paragraph (1) of
subdivision (e) of Section 502.  If the victim elects to receive the
property under this paragraph, the value of the property shall be
determined by the court and that amount shall be credited against the
restitution owed by the defendant.  The victim shall not be
penalized for electing not to accept the forfeited property in lieu
of full or partial restitution.
   (2) Second, at the discretion of the court, to one or more of the
following agencies or entities:
   (A) The prosecuting agency.
   (B) The public entity of which the prosecuting agency is a part.
   (C) The public entity whose officers or employees conducted the
investigation resulting in forfeiture.
   (D) Other state and local public entities, including school
districts.
   (E) Nonprofit charitable organizations.
   (h)  If the property is to be sold, the court may designate the
prosecuting agency or any other agency to sell the property at
auction.  The proceeds of the sale shall be distributed by the court
as follows:
   (1) To the bona fide or innocent purchaser or encumbrancer,
conditional sales vendor, or mortgagee of the property up to the
amount of his or her interest in the property, if the court orders a
distribution to that person.
   (2) The balance, if any, to be retained by the court, subject to
the provisions for distribution under subdivision (g).
  SEC. 5.  No reimbursement is required by this act pursuant to
Section 6 of Article XIIIB of the California Constitution because the
only costs that may be incurred by a local agency or school district
will be incurred because this act creates a new crime or infraction,
eliminates a crime or infraction, or changes the penalty for a crime
or infraction, within the meaning of Section 17556 of the Government
Code, or changes the definition of a crime within the meaning of
Section 6 of Article XIIIB of the California Constitution.
